Case Comment

Lightening Fastener Co. Ltd. v.
Colonial Co. Ltd.

citation(s): [1932] Ex. C.R. 89 per Maclean J.

copyright 1997 Donald M. Cameron, Aird & Berlis




The Decision

At p.100:

"The law protects a patented combination machine even if the infringing machine possesses improvements, patentable improvements; that is immaterial, because if one has taken the substance of the invention, or if the essence or substance of the plaintiff's invention is present in the defendants' combination, there is infringement. It is stated by a text writer on the law of patents that it is a very common delusion of infringers that because the infringing article presents some advantages or improvements over the patented article, and is perhaps itself the subject of a patent, this fact negatives infringement; but that is not so. The question still remains, does the alleged infringing article embody the substance of the invention claimed by the plaintiff? The emphasis laid upon the variations in Prentice really strengthens my conviction that they are the mechanical equivalents of Sundback. In substance the two machines are the same, every step in the operation of Prentice is substantially the same as in Sundback and is made for the same purpose. It seems to me that the whole principle, method and arrangement of Sundback is plainly evident in Prentice, and while the machines are not exactly alike, yet they are in substance alike; they are designed to produce the same result, and substantially by the same means or method. Prentice, in my opinion, cannot be said to be a new combination. If I am correct in this, then it follows, and it is my opinion, that the means employed in the combination of Prentice are the mechanical equivalents of those used in the Sundback combination, and there has been infringement."


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